McCallister v Colin Nelson T/A IDL (Ireland)... Irish Transport Ltd [2012] NIIT 02609

INDUSTRIAL TRIBUNALS

CASE REF: 2609/11

CLAIMANT: Stephen McCallister

RESPONDENTS: 1. Colin Nelson T/A IDL (Ireland) Ltd

2. Irish Transport Ltd

DECISION

The unanimous decision of the tribunal is that the claimant’s claim of unfair dismissal is made out and the tribunal awards the claimant £8,506.90.

Constitution of Tribunal:

Chairman: Mr I Wimpress

Members: Mrs S Doran

Mr R Gunn

Appearances:

The claimant appeared in person.

The respondents did not appear and were not represented.

The Claim and the Response

1. In his claim form the claimant made claims in respect of unfair dismissal, redundancy payment, unpaid wages and holiday pay. In its response the respondents stated that the claimant was dismissed for gross misconduct and the unauthorised use and abuse of company and a customer’s property. The respondents did not attend the hearing either in person or through a representative.

Sources of Evidence

2. The tribunal received a well presented bundle of relevant papers from the claimant and heard oral evidence from him.

The Facts

3. The claimant’s date of birth is 6 May 1957. The claimant commenced employment as a lorry driver with IDL Ireland Ltd on 18 April 2009. The claimant was paid gross £575.00 and £525.00 net. On 29March 2011, the claimant received a letter signed by Colin Nelson, the Managing Director of IDL Ireland Ltd informing him that IDL Ireland Ltd would be closing on 31 March 2011 and that he would be made redundant. The letter stated that all monies owing to the claimant including a lying week and holiday pay due from 1 January 2011 to 31March 2011 would be paid to him in due course. However, no such payments or redundancy payment were received by the claimant and he continued to work for IDL Ireland Ltd.

4. On 13October 2011 the claimant was waiting for his trailer to be loaded at the Primark Distribution Centre in Kettering before returning to Northern Ireland. A colleague, Timothy McColgan told him that he had phoned the tax office in Belfast and was told that his tax and national insurance had not been paid. Mr McColgan then phoned the respondent’s office in Belfast to enquire why these payments had not been made. Mr McColgan encouraged the claimant to make similar enquiries which he did. The claimant was told by a member of staff in the Social Security Office that Mr Michael Nelson, the General Manager, had informed the office that the claimant was no longer employed by the respondent having left of his own accord. It would appear that the claimant was also told that his P45 had been sent in as well.

5. The claimant then phoned the respondent and spoke to Mr Michael Nelson. The claimant got no satisfaction and the conversation was ended by Mr Nelson who put the phone down. The claimant phoned back. The first time the call was not answered and the second time he was put through to Mr Nelson but again received no satisfaction. The claimant then sent a text to Mr Colin Nelson which read, “I suggest that someone give me a call.” There was no response to the text message. The claimant then phoned and managed to be put through to Colin Nelson. Mr Nelson told the claimant that if he ever sent him a text again he would be out. The claimant pursued his tax issues with Mr Nelson who became irritated and said, “Make sure that you have plenty of clothes with you because you will be staying out for the weekend.” According to the claimant this would have meant that he would be paid for four days rather than five days. The claimant went on to state that he was not happy with this. The claimant told Mr Nelson that he could not stay for the weekend because he only had the clothes that he was wearing and more importantly did not have his blood pressure medication with him. In addition it would have caused problems with the tachograph readings. Mr Nelson responded saying, “Clear you lorry out you are sacked”. The claimant replied that he would drive home in the lorry without the load.

6. The claimant got into the lorry and drove it three miles in the direction of the A1 but then had a change of heart and decided to return to Kettering and pick up the load and bring it back to Northern Ireland. The vehicle was loaded by 2.00 pm and the claimant caught the midnight ferry to Belfast and on his arrival drove to the depot at Nutt’s Corner arriving there in the early hours of the morning on Friday 14October 2011. The gates of the depot were open and the claimant parked the lorry. The claimant was not in possession of a key to lock up the depot and he therefore left the keys in the ignition. The claimant cleared out his personal belongings from the cab before leaving. The claimant would normally have left the keys in the boiler house but he no longer had a key for it because the Transport Manager, Jim Patterson, had given the claimant’s key to another driver. The claimant did not want to take the keys home with him because he was concerned that this would have been perceived as theft.

7. On 15 October 2011 the claimant received a letter dated 13 October 2011 from the Managing Director, Mr Colin Nelson informing the claimant of his dismissal from the company due to gross misconduct, the particulars of which were as follows:

“Abusive behaviour to your employer and members of the management team whilst in the company of a customer. Refusal to complete your contracted work when asked to do so. Unauthorised use of company vehicle. Unauthorised use of company fuel. Threatening behaviour to company property and a customer’s high value load in transit. Abandonment of company property and a customer’s high value load during the early hours of Friday 14^th October 2011 by leaving the vehicle unlocked and keys in the ignition.”

8. The claimant responded by letter (incorrectly dated 14 October 2011) and complained about the many irregularities, totally incorrect information and a serious allegation contained in Mr Nelson’s letter. The claimant also drew attention to the fact that his key to the boiler house had been given to another driver by Mr Patterson.

9. Mr Nelson responded by letter dated 20 October 2011. Firstly, Mr Nelson explained to the claimant that his employer had changed from IDL Ireland Ltd to Irish Distribution Ltd on 1 April 2011. Secondly, Mr Nelson advised that the claimant had been given his P60 which set out all of the tax that had been paid on behalf of the claimant. Thirdly, Mr Nelson referred to a meeting that the claimant attended on 5 October 2011 concerning the loss of a very significant contract. Finally, Mr Nelson addressed the events that occurred on 13 October 2011. Mr Nelson referred to the claimant becoming very abusive towards him and members of the management team on the phone in the presence of staff members who heard what was said as it was on speakerphone. Mr Nelson asserted that the respondent had followed proper procedures and that the General Manager had previously given the claimant two verbal warnings relating to two accidents caused by the claimant’s negligence which resulted in damaged property belonging to the respondent and a third party. Mr Nelson then returned to the events on 13-14 October 2011 and stated that the claimant had demanded a meeting with him on Friday 14 October 2011. Mr Nelson explained that he attended his office at 7.45 am to prepare for the meeting but the claimant failed to arrive and that by 9.00 am he had discovered that the claimant had left his lorry unattended in the depot with the keys in the ignition and had left a drawing pin on the driver’s seat with the intention of injuring a company employee. Finally Mr Nelson informed the claimant that he was required to return all company property including the keys to the fuel system and the key to the depot gate before his wages, holiday and pay in lieu of notice would be released to him on 8 November 2011. In the event the claimant was paid one week’s notice pay, a lying week and holiday pay with his final wages which were paid to him on 31 October 2011.

The Law

10. Substantive Unfair Dismissal

The right not to be unfairly dismissed is enshrined in Article 126 of the Employment Rights (Northern Ireland) Order 1996 (“the 1996 Order”). At Article 130 of the 1996 Order it is stipulated that it is for the employer to show the reason for the dismissal and that the reason falls within one of the potentially fair reasons set out at Article 130(2). If the employer shows that the employee was dismissed for a potentially fair reason, the tribunal must then go on to consider whether the dismissal was fair or unfair in accordance with Article 130(4).

Article 130 of the Employment Rights (Northern Ireland) Order 1996 insofar as relevant provides as follows:-

“130. - (1) In determining for the purposes of this Part whether the dismissal of an employee is fair or unfair, it is for the employer to show –

(a) the reason (or, if more than one, the principal reason) for the dismissal, and

(b) that it is either a reason falling within paragraph (2) or some other substantial reason of a kind such as to justify the dismissal of an employee holding the position which the employee held.

(2) A reason falls within this paragraph if it –

(b) relates to the conduct of the employee,

(3) Where the employer has fulfilled the requirements of paragraph (1), the determination of the question whether the dismissal is fair or unfair (having regard to the reason shown by the employer) –

(a) depends on whether in the circumstances (including the size and administrative resources of the employer's undertaking) the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee, and

(b) shall be determined in accordance with equity and the substantial merits of the case.”

Procedural Unfair Dismissal

11. Under the terms of Article 130A of the Employment Rights (Northern Ireland) Order 1996 an employee is unfairly dismissed if one of the statutory dismissal and disciplinary procedures, set out in the Employment (Northern Ireland) Order 2003, applies in relation to the dismissal, that procedure has not been completed and the non-completion of the procedure is wholly or mainly attributable to the failure by the employer to comply with these requirements. In the present case the modified procedure applies which is as follows:

Step 1: statement of grounds for action

The employer must -

(a) set out in writing -

(i) the employee’s alleged misconduct which has led to the dismissal,

(ii) what the basis was for thinking at the time of the dismissal that the employee was guilty of the alleged misconduct, and

(iii) the employee’s right to appeal against dismissal, and

(b) send the statement or a copy of it to the employee.

Step 2: appeal

(1) If the employee does wish to appeal, he must inform the employer.

(2) If the employee informs the employer of his wish to appeal, the employer must invite him to attend a meeting.

(3) The employee must take all reasonable steps to attend the meeting.

(4) After the appeal meeting, the employer must inform the employee of his final decision.

Conclusions

12. It is clear that the claimant was dismissed summarily. There was no investigatory interview, the claimant was not invited to a disciplinary hearing with the option of having a colleague or trade union representative present and the claimant was not given the right to appeal the decision. The reasons given by Mr Nelson in his letter of dismissal go somewhat further than the reasons conveyed to the claimant at the point of his summary dismissal. In terms of substantive unfair dismissal we must judge the fairness and reasonableness of the dismissal on the basis of the reasons given when the claimant was summarily dismissed. The onus is on the respondent to prove that the dismissal was fair and in the absence of any participation by the respondent at the hearing we cannot be satisfied that the dismissal was fair. While there are aspects of the claimant’s behaviour that we find strange in particular, we do not understand why the claimant felt it necessary to press Mr Nelson about the alleged non payment of tax and national insurance over the phone at the behest of Mr McColgan. A more sensible course would have been to have raised this either in correspondence or in person on his return to Northern Ireland. Equally it could be said that Mr Nelson over reacted in precipitously dismissing the claimant summarily in an apparent fit of pique.

13. The respondent did not follow the disciplinary process either as set out in the 2003 Order or the Labour Relations Agency Guidance. Given that this was a summary dismissal the modified procedure applied and the respondent was therefore obliged to set out the basis of its decision in writing and afford the claimant the right of appeal against his dismissal. Although the respondent did provide detailed reasons for its action it failed to offer the claimant an appeal. The tribunal is therefore satisfied that the respondent has failed to comply with the requirements of the modified procedure and accordingly the dismissal is automatically unfair.

14. The claim in respect of redundancy payment was not pursued by the claimant and the claims for unpaid wages and holiday pay were not made out as it is clear that the respondent paid all monies that were due to the claimant as a result of the termination of his employment save insofar as the compensation that arises from the claimant’s unfair dismissal.

15. The claimant took up new employment with Harry Corry Ltd on 21 November 2011. The claimant’s net pay in new employment is £326 per week.

Identity of Respondent

16. The proceedings were originally instituted against Colin Nelson T/A IDL (Ireland) Ltd. A response was filed on behalf of Irish Distribution Ltd on the basis that it had acquired the business on 1 April 2011. By order dated 18 November 2011 Irish Distribution Ltd was added as a respondent to the proceedings. The documentary evidence and in particular Mr Colin Nelson’s letter of 20 October 2011 clearly points to the claimant’s employer being Irish Transport Ltd at the time of his dismissal and the award is made against that organisation.

Compensation

17. As the claimant was automatically unfairly dismissed due to the respondent’s failure to follow the statutory procedure he is entitled to a minimum award of 4 weeks in respect of the basic award unless this would result in injustice to the respondent. There is no evidence before us that would lead to the conclusion that such an award would be unjust. The claimant is also entitled to an uplift in respect of the compensatory award due to the respondent’s failure to adhere to the statutory procedure. As the failure was partial but crucially resulted in the claimant being deprived of the right of appeal we consider that an uplift of 30% is appropriate.

Award

18. Basic Award

Weekly Gross pay £575 [statutory cap £400] x 4 weeks = £1,600.00

Compensatory Award

Net pay from date of dismissal to date of hearing £525 x 17 weeks = £8925.00

Minus earnings to date from new employer: £326 x 12 weeks = £3,912.00

Sub-Total = £5,013.00

Loss of statutory rights: £300.00

Compensatory Award £5,313.00

30% uplift £1,593,90

Total Compensatory Award £6,906.90

Total Award £8,506.90

19. This is a relevant decision for the purposes of the Industrial Tribunals (Interest) Order (Northern Ireland) 1990.

Chairman:

Date and place of hearing: 14 February 2012, Belfast

Date decision recorded in register and issued to parties:

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You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> McCallister v Colin Nelson T/A IDL (Ireland)... Irish Transport Ltd [2012] NIIT 02609_11IT (13 April 2012) URL: http://www.bailii.org/nie/cases/NIIT/2012/02609_11IT.html Cite as: [2012] NIIT 2609_11IT, [2012] NIIT 02609_11IT

Industrial Tribunals Northern Ireland Decisions